Laws Punishing Cyber Stalking and Online Harassment

In this article, Chandrima Khare of Rajiv Gandhi National University of Law, Punjab discusses laws Punishing Cyber Stalking and Online Harassment.

Introduction

India has not only bagged one of the top ranks for having the highest number of internet users, but we also ace the statistics of global sexual harassment. The harassment faced by women online mirrors the image of harassment faced by them in the physical world. A survey conducted by Feminism in India underscored that 50% of women in major cities of India have faced online abuse. What is more striking is that instances of cyberstalking against men are on a surge. Experts have opined that the ratio is 50:50 vis-a-vis the instances of cyberstalking faced by men and women.

Cyber Stalking and Online Harassment

How British Crime Survey defines stalking

The British Crime Survey defines stalking as two or more incidents causing distress, fear, or alarm, of obscene or threatening unwanted letters or phone calls, waiting or loitering around home or workplace, or following or watching, or interfering with, or damaging personal property carried out by any person.

Cyberstalking is a criminal practice whereby a person uses the internet, cell phone, and/or any other electronic communication device to stalk another person.

The perpetrators are involved in the destruction of data or equipments, solicitation of minors for sexual purposes, threats, or any other form of offensive behaviour committed repeatedly.

The offenders make use of email, social media, chat rooms, instant messaging or any other online media to harass the victim.

How Forbes defines online harassment

Forbes defines online harassment or cyber harassment as repeated online expression amounting to a “course of conduct” targeted at a particular person that causes the targeted individual substantial emotional distress and/or the fear of bodily harm.

Online Harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013

Online harassment also encompasses sexual harassment which is defined under section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 as unwelcome

physical contact and advances; or

a demand or request for sexual favours; or

making sexually coloured remarks; or

showing pornography; or

any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

What can constitute online harassment?

Public actions or threats

False accusations of defamatory nature

Hacking or vandalising the sites of the victim

Sexual remarks

Publish materials so as to defame a person

Personally targeting the victims of crime

Ridicule or humiliate a person in order to gang up against him

Legal Provisions on Cyberstalking and Online Harassment

Punishment for cyberstalking and online harassment under the Indian Penal Code

Section 354 D of the Indian Penal Code which was added by the Criminal Law (Amendment) Act 2013 specifically proscribes the act of stalking as Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever, monitors the use by a person of the Internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking.

The victim can also additionally file a case of defamation (Section 499, IPC) against the offender. The section has bailed out those acts of stalking which are performed for the purpose of preventing and detecting crime by a person who has been entrusted with such responsibility by the state. Also, instances where pursuing such conduct was reasonable or where the person was authorised under any act cannot allude to the offence of stalking.

Section 354A of IPC punishes offence of sexual harassment with 3 years of imprisonment and/or fine.

Section 354C criminalises the offence of Voyeurism. It is defined as the act of capturing the image of a woman engaging in a private act, and/or disseminating said image, without her consent. The section prescribes 3 years of imprisonment for the first conviction and 7 years of imprisonment on second conviction along with fine.

Section 503 punishes criminal intimidation as threats made to any person with injury to her reputation, either in order to cause alarm to her, or to make her change her course of action regarding anything she would otherwise do/not do. The offences under S. 499 and S. 503 are punishable with imprisonment which may extend to two years, and/or fine.

Section 509 of IPC comes to your rescue if someone is constantly bugging you with derogatory verbal abuse because of your gender. The section provides that any person who utters any word or makes any sound or gesture, intending that such word, sound or gesture be heard or seen by a woman and insult her modesty, shall be punished with one-year imprisonment and/or fine.

Section 507 punishes criminal intimidation by an anonymous communication with a term which may extend to two years of imprisonment. Vengeful posting of images or videos of rape victims is punishable with imprisonment which may extend to two years and fine under section 228a of IPC.

The Information Technology Act, 2008

The IT Act of 2008 does not directly deal with the offence of stalking.

Section 72 of the Act is used to deal with the offence of stalking which reads as follows: Any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made thereunder, has

discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 67 prohibits and punishes with imprisonment extending up to three years and fine for the first conviction and to five years and fine upon second conviction, the publication, transmission and causing of transmission of obscene content.

Section 67A has culled out a special category called material containing a ‘sexually explicit act’. The publication, transmission or causing of transmission of such material is punishable with imprisonment extending up to five years and fine for first conviction and to seven years and fine upon second conviction.

Section 66A of IT Act, 2008 provides:

Any person who sends, by means of a computer resource or a communication device

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

This section was struck down in Shreya Singhal v. Union of India in 2015 as it

arbitrarily, excessively and disproportionately invaded the right of free speech and was so wide that any opinion on any subject would come under its ambit.

How to lodge a complaint

The Information Technology Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected or having committed or of committing or of being about to commit any offence under this Act. (Section 80)

Cybercrimes do not have a jurisdiction as these crimes committed without any barrier of boundaries. So, you can report a cyber crime to the cybercrime units of any city irrespective of the place where it was committed.

Cyber Cells: Cyber Cells have been established to provide redressal to the victims of cybercrime. These cells function as a part of the criminal investigation department and specifically deal with internet related criminal activity. If you do not a cyber cell at your place of residence, then you can file an F.I.R in a local police station. You can also approach the commissioner or the judicial magistrate of your city, if by any reason you are unable to file an F.I.R. Any police station is bound to register an F.I.R., irrespective of its jurisdiction.

Online Grievance Redressal: Police is the most notorious law enforcement agency in India when it comes to dealing with women victims. Even when women have easy access to a police station, they hesitate in reporting the incident to them, under the fear of being harassed and being made to suffer additional ordeal. As a result, such crimes committed against women remain swept under the rug and women continue to bear the brunt of harassment. So, women who do not want to come out in the open can file a complaint against stalking at the National Commission for Women. The Commission takes up the matter with the police and expedites the investigation. In cases of serious offences, the commission can set up an inquiry committee to probe into the matter and conduct spot inquiry, collect evidence, and examine witnesses, summon accused and police records, etc to further the investigation.

Report to the websites: Most of the social media websites where users make their accounts provide a reporting mechanism. These websites are obliged under the IT (Intermediary Guidelines) Rules, 2011 to act within 36 hours to disable information related to offending content. The intermediary shall have to preserve such information and associated records for at least ninety days for investigation purposes. The affected person can bring to the knowledge of the intermediary, any offending content which is hosted, stored, or published on his computer system, in writing or through email signed with electronic signature.

Report to CERT: The Information Technology Amendment Act 2008 has designated the Indian Computer Emergency Response Team (CERT-IN) as the national nodal agency for tackling the issues occurring in tow with computer security threats. They issue guidelines on the procedure, prevention, reporting, and response to cyber incidents, among other functions.

What can be reported to CERT?

Both the users and System Administrators can approach CERT-IN to report about computer security incidents and vulnerabilities. CERT-IN is at your disposal to provide technical assistance if the users experience any the following violations:

Email related issues viz. mail bombing, spamming etc.

Processing and storing data by unauthorised use of a system

Making changes into the software characteristics, system hardware or firmware without obtaining the consent of the owner or without the knowledge or instruction of the owner

Attempt to obtain unauthorised access to a system or data contained therein. Attempt includes both successful and failed attempt

Disruption or denial of service

How to report incidents to CERT-IN

You can report an incident to CERT by sending them an electronic mail, calling them, or filling up a form available on their website, or by fax.

Through Website: You can also report the incident on the website of CERT-IN by filling up an incident-reporting form. Try to fill all the details as it will help CERT to understand the gravity and nature of the incident and

and assist in recovery as desired by you.

Through Electronic Mail: The CERT-IN email address for reporting incidents is [email protected]‖. For all other inquiries and correspondence, write to ―info @cert-in.org.in‖.

Through Telephone and Fax: Contact CERT-In on +91-11-24368572. Incident report can be faxed to CERT-In at +91-11-24368546.

DOs and DON’Ts

As cyber crimes are committed in a virtual world, it becomes difficult to collect evidence against the offender. So, do not immediately delete the photos, mails, or any other information sent by the stalker as this can help the investigators to trace the trail of his online activities and track him.

Cyberstalkers can easily hide evidence of their online activity, so preserving his evidence via printouts or screenshots can come very handy.

Report the incident to the website in question.

File a First Information Report to enable commencement of the investigation of the cyber crime.

Important laws relating to Cyber Stalking and Online Harassment one must know

Sl. No.

Offences

Sections

1.

Printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail

Sec. 292 A IPC

2.

Making sexually coloured remarks, guilty of the offence of sexual harassment.

Sec. 354 A IPC

3.

Offence of Stalking

Sec. 354 D IPC

4.

Sending defamatory messages by email

Sec. 499 IPC

5.

Criminal intimidation by an anonymous communication

Sec. 507 IPC

6.

Word, gesture or act intended to insult the modesty of a woman

Sec. 509 IPC

7.

Punishment for violation of privacy

Sec. 66E IT Act, 2008

8.

Publishing or transmitting obscene material in electronic form

Sec. 67 IT Act, 2008

9.

Publishing or transmitting of material containing sexually explicit act, etc. in electronic form

Sec. 67 A IT Act, 2008

This is not a comprehensive list.

The International Journal of Science, Technology, and Management (issued on 4th April 2017) gave some useful links to report objectionable content to Social Media intermediaries like Facebook, Yahoo etc.

Nice Article sir.. however to the best of my knowledge, as per the 2008 Amendment, powers under section 80 have been given to any police officer not below the rank of ‘Inspector’. Please correct me if I’m wrong.